http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (civil)  1763 of 2007

PETITIONER: Raj Kumar Soni & Anr

RESPONDENT: State of U.P. & Anr

DATE OF JUDGMENT: 03/04/2007

BENCH: P.K. Balasubramanyan & B. Sudershan Reddy

JUDGMENT: J U D G M E N T  CIVIL APPEAL NOs.       1763    OF 2007 (Arising out of SLP(c) Nos.  18747-18748 of 2005)

B.SUDERSHAN REDDY,J.

       Leave granted.          On 31-3-1993 the Sub-Divisional Officer, Kotdwar  accorded approval to allot the land in question admeasuring  Ac.0-053 hectare in Khasra No.1003 situated at village  Jhonk, District Pauri Garhwal (Uttaranchal) to one Mahanth  Govind Das.  On the same day, the Sub-Divisional Officer  executed a lease deed in favour of the allottee for a period  of thirty years from the date of execution of the lease deed.   The said Mahanth Govind Das is stated to have applied for  and obtained a sanctioned plan for raising certain  constructions from the Development Authority, Haridwar.   The appellants herein purchased the constructions  raised/Malwa under the registered sale deed dated 26-4- 1995 from the said Mahanth Govind Das.  The appellants  claim to have purchased the land also, as is evident from  their pleadings and contentions raised in the writ petition.   Be it noted, the land admittedly belongs to Government.         The appellants, by their application dated 15-5-1995  requested the Collector to grant mutation in their favour, in  which it is stated that they have purchased the debris and  not the land from Mahanth Govind Das.  The Deputy  Collector, having considered the application so submitted by  the appellants found "the holder of grant Mahant Govind Das  sold the debris of residential building and the shops along  with the   possession through the registered sale deed in  favour of the applicants on 2-5-1995.   In case the debris is  removed due to violation of the grant, then there is  possibility of starting of unnecessary litigation and if Pakka  houses are removed, then many legal hurdles might arise,  which are not benefit the State government.  Therefore it is  not appear proper to dispossess them from the land. (sic)"   The Deputy Collector however, disposed of the application  directing the transfer of the land itself in the names of the  appellants on payment of land revenue at Rs.157.50 paise.         The District Magistrate, Kotdwar Garhwal vide show- cause notice issued on 5-4-1999 required the appellants  herein to show-cause as to why the grant of the land made  in their favour by the Sub-Divisional Officer, Kotdwar should  not be rescinded.  In the show-cause notice, it is alleged  that the Sub-Divisional Officer has unauthorisedly

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

granted/allotted the land in favour of the appellants.  It is  specifically alleged that the Sub-Divisional Officer is not  authorized to grant land, inasmuch as the authority to grant  the Government land for the residential purpose vests in the  District Magistrate.  The appellants submitted their detailed  explanation to the said show-cause notice, inter alia,  contending that the authority accorded grant only after  lawful enquiry and they have spent considerable amount in  renovating the existing building on the land and also made  some new constructions in respect of which no objections  have been raised at any point of time.  It was contended  that the proceedings initiated against them are not  maintainable in law.  It was also contended that they have  acquired the status of tenure holders.  The District  Magistrate, having considered the explanation submitted by  the appellants clearly found that the Sub-Divisional Officer  had no authority to allot the land to Mahanth Govind Das in  the year 1993.  The Collector accordingly held that the order  of allotment and lease executed by Sub-Divisional Officer did  not confer any right, title and interest in the land in favour  of Mahanth Govind Das.  The said Mahanth Govind Das sold  the said land to the appellants without any authority of law.   The District Magistrate/Collector also found that the Sub- Divisional Officer abused his authority at every stage right  from the commencement of grant of land to Mahanth Govind  Das till the transfer of the land to the appellants.  The order  of transfer made in favour of the appellants by the Sub- Divisional Officer has been accordingly quashed and  appropriate directions have been issued to make entries in  the revenue records duly incorporating the name of the  Government as the owner of the land.         The appellants challenged the order passed by the  District Magistrate/Collector dated 10-5-1999 in Civil Misc.  Writ Petition No. 20708 of 1999.  It was sought to be  contended as if the appellants have purchased the land itself  from Mahanth Govind Das  but appears to have given up the  same during the course of hearing of the writ petition.  It  was asserted that the power to grant lease vests in the  Assistant Collector, previously known as Sub-Divisional  Officer and therefore, it cannot be said that the lease  granted was without jurisdiction.  The High Court found that  the appellants did not purchase the land but what they have  purchased under the registered sale deed was Malwa (debris  of constructions).  The Sub-Divisional Officer, according to  the High Court, could not have passed any order directing  transfer of the land in favour of the appellants based on the  sale deed executed by Mahanth Govind Das.  In terms of  G.O.150/1/185(24)-6010, dated 09-10-1987, the Sub- Divisional Officer/Deputy Collector had no authority to  accord approval of grant of land inasmuch as the authority  stood vested only with the Collector of the District to accord  approval up to certain limit  for residential purpose.  The  High Court also found that the appellants’ application for  transfer was not made under the provisions of the U.P.  Zamindari Abolition and Land Reforms Rules.  The High  Court further held that no foundational facts have been  pleaded by the appellants that the conditions existed for  securing allotment of land under the said provisions.  The  appellants’ claim does not fall under any of the categories in  respect of which an order of allotment could have been  made under the provisions of the said Rules. The High Court  took the view that in any event the Collector of the District  is conferred with the power under Section 122(6) of the U.P.  Zamindari Abolition and Land Revenue Act to cancel any  irregular allotment made by the Assistant Collector in-charge

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

of such division.  The High Court held the order of the Sub- Divisional Officer in allotting the land to Mahanth Govind Das  and thereafter directing the transfer of the land in the name  of the appellants is void and without jurisdiction.         These appeals are directed against the decision of the  High Court, dismissing the appellants’ writ petition.         Sri Sudhir Chandra, learned Senior counsel for the  appellants submitted that the findings by the District  Magistrate that the power of the Sub-Divisional Officer in the  matter of allotment of land has been withdrawn on 9-7-1992  is absolutely baseless and in the absence of production of a  copy of the proceedings thereof it has to be presumed that  the Sub-Divisional Officer was competent to allot the land.  The learned Senior counsel further submitted that in the  show cause notice there was no mention about the  withdrawal of the power conferred upon the Sub-Divisional  Officer and in such view of the matter the order of the Sub- Divisional Officer could not have been set aside on the  ground not mentioned in the show cause notice.  The order  according to the learned counsel is in violation of the  principles of natural justice.   The learned counsel appearing on behalf of the State  submitted that the proceedings right from the allotment of  land up to the execution of lease deed  are void ab initio.  The Sub-Divisional Officer was not authorized to allot the  Government land in favour of Mahanth Govind Das and  thereafter transfer the same in favour of the appellants. The  High Court rightly refused to interfere with the orders  passed by the District Magistrate/Collector.  We have carefully considered the rival submissions and  perused the entire material available on record.  We are not required to consider the first contention  seriously, for the simple reason that the appellants did not  raise any issue whatsoever about this aspect of the matter  in their writ petition.  In their reply to the show-cause  notice, they did not plead and explain as to under what  authority the Sub-Divisional Officer allotted the land in  favour of Mahanth Govind Das and thereafter transferred the  same in favour of the appellants.  It is only after the  disposal of the writ petition and during the pendency of this  appeal, the appellants addressed a letter to the District  Collector requiring him to furnish information with regard to  order passed by him withdrawing the powers of the Sub- Divisional Officer in the matter of allotment of lands.  On  consideration of the entire material available on record, it  appears to us, that what has been withdrawn by the District  Collector is obviously with reference to the power conferred  upon the Sub-Divisional Officer to execute the lease deed for  and on behalf of the Governor of the State.  No provision of  law is brought to our notice under which the Sub-Divisional  Officer could have allotted the land initially to Mahanth  Govind Das and thereafter transferred the same to the  appellants.         The High Court, after an elaborate consideration of the  matter, in clear and categorical terms, found that the Sub- Divisional Officer had no jurisdiction vested in him to  grant/allot the Government land and the power vests only  with the District Collector.  The appellants did not plead and  establish to the satisfaction of the Court that the Sub- Divisional Officer is conferred with the jurisdiction to  allot/grant the Government land on the strength of  applications by the interested parties.  It is a fundamental  principle of law that a person invoking the extraordinary  jurisdiction of the High Court under Article 226 of the  Constitution of India must come with clean hands and must

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

make a full and complete disclosure of facts to the Court.   Parties are not entitled to choose their own facts to put- forward before the Court.  The foundational facts are  required to be pleaded enabling the Court to scrutinize the  nature and content of the right alleged to have been violated  by the authority.         The appellants in this case failed to establish that they  have lawfully secured allotment of land.  It is the duty casts  upon the appellants to plead and establish that the order of  allotment/grant by the Sub-Divisional Officer in favour of  their predecessor-in-title created any legal right and also  further establish the transfer of land in their favour has been  validly made by the Sub-Divisional Officer.  In such view of  the matter we are of the opinion, justice has been done in  the matter and the High Court rightly refused to resurrect or  resuscitate the order of the Sub-Divisional Officer which is  unenforceable in law. The "Rules regarding Management of Government  property", upon which strong reliance has been placed by  the appellants, do not provide for and contemplate for  making any such transfer of Government land from one  person to another person. The Parganadhikari (Sub- Divisional Officer) has no authority whatsoever even under  the said Rules to make any grant in favour of any individual  or individuals.  Rule 5, upon which reliance has been placed  reads as under:         "5. Land will be allotted on lease under  Government Grants Act on the format prescribed  by Revenue Board.  Parganadhikari is hereby  authorized to sign this lease deed on behalf of His  Excellency The Governor.  No registration is  required for such deeds."    A plain reading of the Rule clearly reveal that  Parganadhikari is merely authorized to sign the lease deed  on behalf of the Governor.  The Rules nowhere confer power  upon the Parganadhikari to allot Government land on lease  in favour of any individual. Yet another aspect of the matter: The Sub-Divisional  Officer did not allot the land in favour of the appellants after  canceling the grant made in favour of Mahanth Govind Das.   Having found that Mahanth Govind Das violated the terms  and conditions of grant, the Sub-Divisional Officer cancelled  the grant of lease and imposed penalty of Rs.2000/- upon  Mahanth Govind Das and simultaneously effected transfer of  the land in favour of the appellants.  Assuming that the Sub- Divisional Officer had  the authority and jurisdiction to grant  lease of the land for non-agricultural purposes, at the most  he could have considered the application of the appellants  on merits in order to decide as to whether they were entitled  to grant of any Government land,  but under no  circumstances the Sub-Divisional Officer could have passed  orders transferring  the land in the names of the appellants.   It is true in the show cause notice issued on 5.4.1999  by the District Magistrate there is no mention about the  order dated 9.7.1992 withdrawing the powers conferred  upon the Sub-Divisional Officer in the matter of according  grant of lease of government lands.  It is, however, stated  that the Parganadhikari/Sub-Divisional Officer is not  authorized to grant land, under the Government Grant Act,  the authority to grant land to certain extent for residential  purposes is vested in the District Magistrate.  It is in the  final order of the District Magistrate a mention is made  about the proceedings under which the powers of the Sub- Divisional Magistrate had been  withdrawn as early as on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

9.7.1992 much prior to the Sub-Divisional Officer according  grant on 20.5.1993.  The appellants may be technically right  in contending that the order of the District Collector is based  on the grounds which were not specifically mentioned in the  show cause notice issued to the appellants.  But at the same  time we are required to bear in mind that in the show cause  notice it is clearly stated that the Parganadhikar/Sub- Divisional Officer is not authorized to grant land, under the  Government Grant Act, the authority to grant land to certain  extent for the residential purposes is vested in the District  Magistrate. It was, therefore, incumbent upon the appellants  to plead and establish that the Sub-Divisional Officer had the  authority to grant the Government land on lease for  residential purposes.  The High Court while exercising the  jurisdiction under Article 226 of the Constitution of India had  come to the conclusion that the order of the Sub-Divisional  Officer  upon which the whole claim of the appellants rests  was invalid and improper. The High Court itself could have  set aside such invalid and improper order. Therefore, in our  considered opinion nothing turns on this argument.  Even if  there was any technical violation of the rules of natural  justice, this is not a fit case for interference, such  interference would result in resurrection of an illegal, nay,  void order.  In Venkateswara Rao v. Government of A.P. , a  Primary Health Centre was formerly inaugurated at a  particular village subject to certain conditions.  Since those  conditions are not satisfied, the Panchayat Samithi resolved  to shift it to another village.  The Government, in exercise of  its review jurisdiction, interfered with the resolution so  passed by the Panchayat Samithi without providing any  opportunity whatsoever to the Panchayat Samithi. The  government’s order was challenged in a proceeding under  Article 226 of the Constitution of India.   The A.P. High Court  held, the order passed by the Government on the review to  be bad, but did not interfere on merits.  The Supreme Court,  while confirming the order of the High Court observed that: "if the High Court had quashed the said  order, it would have restored an illegal order; it  would have given the Health Centre to a village,  contrary to the valid resolutions passed by the  Panchayat Samithi."  

The Supreme Court opined that the High Court was  right in refusing to exercise its extraordinary discretionary  power under Article 226 of the Constitution of India. In M.C.Mehta v.Union of India , this Court, relying  upon Venkateshwara Rao (1 supra) observed;  "the above case is clear authority for the  proposition that it is not always necessary for the  Court to strike down an order merely because the  order has been passed against the petitioner in  breach of natural justice.  The Court can under  Article 32 of Article 226 refuse to exercise its  discretion of striking down the order if such  striking down will result in restoration of another  order passed earlier in favour of the petitioner and  against the opposite party, in violation of  principles of natural justice or is otherwise not in  accordance with law."

In our view, on the admitted and indisputable facts set  out above, any interference with the impugned order of the  District Collector would result in restoration of orders passed  earlier in favour of the appellants which are otherwise not in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

accordance with law. For all these reasons, we do not find any merit in the  appeals.  The appeals are accordingly dismissed.  We make  no order as to costs.